Alpha fights to block health studies from permit lawsuit

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CHARLESTON, W.Va. -- Lawyers for Alpha Natural Resources are trying to keep testimony about West Virginia University studies linking mountaintop removal to birth defects and cancer among coalfield residents out of a legal challenge to one of the company's new mining permits.Alpha lawyers want U.S. District Judge Robert C. Chambers to deny a request by the Ohio Valley Environmental Coalition to include the studies in its lawsuit over the Reylas Surface Mine, proposed by Alpha subsidiary Highland Mining.The coalition and other groups are asking to add a claim about potential human health impacts to a suit that challenges a Clean Water Act permit the U.S. Army Corps of Engineers issued for the 235-acre mine proposed for Logan County.Environmental group lawyers cited three studies co-authored by WVU researcher Michael Hendryx that found generally higher rates of health problems, and specifically higher rates of cancer and birth defects, among residents living near mountaintop removal operations in Appalachia.

The three papers are among a series of 20 peer-reviewed studies Hendryx and various co-authors have published examining possible links between mountaintop removal and various illnesses. Collectively, the papers have given weight to citizen complaints about coal's impact on public health. Anti-mountaintop removal activists point to the research to show that the issue isn't just about mining's effects on salamanders, mayflies or isolated mountain streams."The three studies cited by plaintiffs present a seriously different picture of the impacts of mountaintop mining on human health than what the corps found," environmental group lawyers Joe Lovett and Derek Teaney wrote in one court filing. "The corps found that 'no human health effects are anticipated as a result of the' proposed project, while these three studies found an increase in unhealthy days and birth defects and a potential doubling of cancer risk."Lovett and Teaney asked Chambers to order the corps to conduct a new permit analysis that includes an examination of the WVU studies and what they might mean for communities near the Reylas mine site.Alpha lawyer Bob McLusky argues in a court filing that the environmental groups waited too long to raise the studies, that the health impacts cited have nothing to do with the water pollution permit at issue in the case, and that general health studies shouldn't be used in a case over a specific mining permit.

In a related bit of legal maneuvering, Alpha lawyers have issued broad-ranging subpoenas to Hendryx and WVU, seeking a wide variety of documents, correspondence and data related to studies of mountaintop removal's health effects.Court records show that Hendryx had agreed to serve as an expert witness in the case. But "after receiving the subpoenas, Hendryx told plaintiffs he was withdrawing as an expert witness," the environmental group lawyers disclosed in a court filing. One of his co-authors, Melissa Ahern of Washington State University, is scheduled to take his place as an expert witness for the citizen groups.WVU lawyers filed a motion seeking to block the subpoenas, arguing that they seek confidential data about individuals who took part in the studies and seek such detailed information that responding would be "unduly burdensome.""In the case at bar, defendant's subpoenas seek twenty different categories of documents, six of which contain subcategories with up to ten subcategories," WVU lawyers wrote. "The breadth and scope of the subpoenas, and the many, many hours necessary to compile such information, is an unreasonable burden to place upon these non-parties."Alpha argues that it needs the information so they can fully understand and respond to the scientific basis for the studies."For example, it is relevant how Hendryx and his colleagues conducted surveys of residents, what data they used and how they analyzed that data, how they selected and rejected variables, how they responded to peer-review comments, etc., in order to evaluate the claims made by OVEC that rely on these articles," McLusky wrote. "Highland can only evaluate the claims made in these articles by having access to the data and documents requested in the subpoenas."In a separate legal filing, environmental groups argue that much of the material being sought from Hendryx involves correspondence and other documents that, if made public, would interfere with the traditional anonymity of the scientific peer-review process.